n

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM A. MAKELA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3198

) HOWARD TREVEY and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Port Charlotte, Florida, on March 3, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: William A. Makela

2642 Titania Road

Englewood, Florida 33533

For Respondent: Richard L. Smith, Esquire

2070 Ringling Boulevard

Sarasota, Florida 33577

Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This matter concerns a permit application filed by Respondent Howard Trevey to construct a pedestrian bridge, elevated nature walk and two boat docks.

Respondent Department of Environmental Regulation (DER) issued a notice of intent to grant the application, which is opposed by Petitioner.

The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have rot been adopted or otherwise incorporated herein, they have been rejected as irrelevant or inconsistent with the evidence.

FINDINGS OF FACT

1. Respondent Trevey is constructing condominium units on property adjacent to Oyster Creek in Charlotte County, and seeks to develop waterfront facilities for the use of condominium residents. Oyster Creek is a navigable stream flowing into Lemon Bay and thence into the Gulf of Mexico.

2. The proposed site of Dock No. 1 is along the south bank of Oyster Creek in that portion of the stream which constitutes the main channel. Dock No. 2 would be located on a branch or loop off the main channel.

   
   

3. The pedestrian bridge would cross this stream near the proposed site of dock No. 2 and would be part of a nature walk on Respondent Trevey's property situated on the south bank of the main channel. At some earlier time the stream was altered by the dredging of a canal which became the main channel and created the island which is the proposed site of the nature walk.

   
   

4. In addition to this canal which forms a portion of the main channel, a network of smaller canals has been constructed on the north side of Oyster Creek, generally across from the sites of the construction proposed herein. These canals provide water access for homeowners in this area. Respondent Trevey observed some 92 boats moored in these canals.

   
   

5. The main channel of Oyster Creak provides boater access to Lemon Hay and the Gulf of Mexico. Construction of proposed Dock No. 1 in this channel would therefore affect navigation to some degree.

   
   

6. Dock No. 1 has a proposed length of 300 feet and a width of 4 feet. The dock would be built two to three feet away from the south bank of Oyster Creek, thus extending about six feet into the channel. The dock would be used to moor boats, on a "parallel parking" basis. Assuming a boat width of eight feet and proper mooring, protrusion into the stream would be approximately fourteen feet.

   
   

7. Creek width in the Dock No. 1 site is about sixty feet. The water is shallow and varies with the seasons and tides. Navigation near the north bank opposite the Dock No. 1 site is not possible due to the presence of a large oyster bed. Therefore boat operators tend to maneuver their craft on the (proposed) dock side of the creek center line.

   
   

8. The distance from the deepest part of the creek to the south bank where Dock No. 1 would be located averages about 33 feet. The proposed dock and moored boats would take up nearly half of this distance.

   
   

9. Since boaters must stay near the deepest part of the channel, as well as avoid the oyster bed on the north bank, navigation around the dock and moored boats could prove difficult. A hazardous situation could occur when boats were passing in opposite directions in the dock area or when any Dock No. 1 boats were improperly moored. Operation of powerboats in the vicinity of Dock No. 2 is not feasible due to shallow waters nor is this branch of the stream utilized for access to open water. Therefore, construction of Dock No. 2 would not impede navigation.

   
   

10. The presence in the area of a paved road, bridges, an industrial park, Petitioner's boat ramp and numerous canals contribute to degradation of water quality, disruption of wildlife and soil erosion. Studies made by Respondents established that water quality would not be further degraded by construction of the proposed facilities, nor would any wildlife or vegetation be significantly disturbed. The facilities are designed and located to avoid creating or contributing to soil erosion.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Subsection 120.57(1), Florida Statutes (1981). Permits issued by the Department of Environmental Regulation for the proposed construction are required pursuant to Chapters 253 and 403, Florida Statutes (1981), and Rules 17-4.03, 17-4.28 and 17-4.29, Florida Administrative Code (F.A.C.)

    
    

12. Rule 17-4.28, F.A.C. requires that an applicant demonstrate that the proposed project will not cause short term or long term water quality problems. Respondents having made such a showing are entitled to the permit sought with respect to this provision.

    
    

13. Rule 17-4.29-(6), F.A.C. provides in part:

    
    

    (6) The Department shall not issue

    a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

    1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to the contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary

       to the public interest, and

    2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

    
    

14. The above provisions require Respondent Trevey, as the applicant, to demonstrate that his project will not interfere with conservation or navigation. Respondents have shown by their studies that conservation interests are protected as required by the above-quoted provision. However, they have not demonstrated that the proposed Dock No. 1 would not create a serious impediment to navigation.

15. Although the dock itself is narrow and located close to the stream bank, boats moored alongside this dock would protrude significantly into the navigation channel. Further, their landing and departure would create congestion in the area thus creating or contributing to a navigational hazard.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Environmental Regulation issue a permit

to Howard Trevey for the construction of the proposed pedestrian bridge, nature walk and Dock No. 2, but deny that portion of the application pertaining to the proposed Dock No. 1.

DONE and ORDERED this 5th day of April, 1982, in Tallahassee, Florida.

R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982.

COPIES FURNISHED:

William A. Makela 2642 Titania Road

Englewood, Florida 33533

Richard L. Smith, Esquire 2070 Ringling Boulevard

Sarasota, Florida 33577

Charles G. Stephens, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida

Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-003198

Orders for Case No: 81-003198